2017 CCA LEXIS 593
A.C.C.A.2017Background
- Appellant (Spc. Immanuel E. Martinez) and PV2 Shepard participated in sexual activity with an intoxicated fellow soldier (PV2 SM) in a hotel room; multiple sexual assaults and indecent viewing occurred while others were present.
- Appellant was convicted at a general court-martial of attempted sexual assault, conspiracy to commit indecent viewing, three specifications of sexual assault, abusive sexual contact, and indecent viewing under the UCMJ.
- The members sentenced appellant to a dishonorable discharge, 15 years confinement; the convening authority approved 12 years and 11 months confinement (with credit and mitigation for assistance to his coactor).
- Appellant later received immunity and testified against PV2 Shepard; Shepard was convicted and sentenced to a dishonorable discharge and 6 years confinement.
- Appellant asserted his sentence was unduly disparate compared to Shepard’s and sought sentence relief on that basis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellant's sentence is highly disparate from coactor Shepard's | Appellant: his 12y11m confinement is highly disparate to Shepard's 6 years and warrants relief | Government: cases are not highly disparate or, even if disparate, sentence comparison alone does not require relief | The court: cases are closely related but the disparity (9 years; both low percentages of maximum) is not "highly disparate"; no relief granted |
| Whether appellant met burden to show cases are "closely related" for comparison | Appellant: coactor in same criminal course with same victim justifies close relation | Government: conceded the cases are closely related | Court: government concession correct; cases are closely related |
| Standard for determining "highly disparate" sentences | Appellant: percentage-of-maximum and absolute difference show high disparity | Government: percentage comparison not dispositive; must consider overall sentence appropriateness factors | Court: no bright-line test; percentage useful but not dispositive; here disparity not high given both sentences were relatively short compared to maxima |
| Whether sentence comparison entitles appellant to relief even if disparity exists | Appellant: disparity alone requires relief | Government: sentence comparison is only one aspect of appropriateness; even a disparate sentence can be appropriate | Court: even if disparity existed, sentence comparison is just one factor; individualized appropriateness review upholds appellant's sentence |
Key Cases Cited
- United States v. Snelling, 14 M.J. 267 (C.M.A. 1982) (sentence comparison is only one aspect of sentence appropriateness)
- United States v. Lacy, 50 M.J. 286 (C.A.A.F. 1999) (burden on appellant to show closely related cases and highly disparate sentences; shifts to government to justify disparity)
- United States v. Roach, 69 M.J. 17 (C.A.A.F. 2010) (assessing whether sentences are highly disparate)
- United States v. Ballard, 20 M.J. 282 (C.M.A. 1985) (sentence comparison required only in rare instances where it is essential to determine appropriateness)
- United States v. Healy, 26 M.J. 394 (C.M.A. 1988) (sentence appropriateness requires individualized consideration of offender and offense)
- United States v. Bauerbach, 55 M.J. 501 (Army Ct. Crim. App. 2001) (sentence appropriateness reviewed de novo)